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State of Ohio v. Timothy Literal

December 26, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
TIMOTHY LITERAL, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: McFarland, J.:

Cite as State v. Literal,

DECISION AND JUDGMENT

ENTRY

{¶1} Appellant, Timothy Literal, appeals the trial court's denial of his "Petition to Vacate Judgment of Conviction or Sentence." In 2007, a jury found Appellant guilty of robbery, aggravated robbery, possession of drugs and trafficking in drugs. Appellant filed a direct appeal of his convictions and sentences, which we determined in State v. Literal, 4th Dist. No. 07CA3207, 2009-Ohio-199. In his current appeal, Appellant contends that the trial court erred by overruling his petition to correct his illegal sentence, in which he claimed that the offenses of aggravated robbery and possession of drugs were allied offenses of similar import, which should have merged pursuant to R.C. 2941.25, as well under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.

{¶2} However, because Appellant could have, but failed to raise this argument as part of his original direct appeal, his argument is barred by the doctrine of res judicata. Further, although a void sentence is subject to challenge at any time, even if Appellant's argument was meritorious, his convictions would simply be rendered voidable, not void. Accordingly, the decision of the trial court is affirmed.

FACTS

{¶3} In 2007, a jury found Appellant guilty of robbery, aggravated robbery, possession of drugs and trafficking in drugs. As part of his direct appeal, this Court vacated his conviction for trafficking in drugs, but affirmed all other aspects of his convictions and sentences. Since that time, Appellant has filed a series of post conviction motions, his most recent being his February 21, 2012, Petition to Vacate Judgment of Conviction and Sentence. Appellant raised only one claim in his petition, the claim being that aggravated robbery and possession of drugs are allied offenses of similar import and that his convictions should have been merged for purposes of sentencing. Appellant cited the recent holding of the Supreme Court of Ohio in State v. Johnson, supra, in support of his argument. The trial court denied the petition as untimely on March 9, 2012. It is from this judgment entry that Appellant now brings his current appeal, setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

"I. THE TRIAL COURT ERRED BY OVERRULING THE

APPELLANT'S PETITION TO CORRECT ILLEGAL SENTENCE THAT IS BEING MAINTAINED IN VIOLATION OF HIS FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES, AND SIMILAR PROVISIONS OF THE OHIO CONSTITUTIONS."

LEGAL ANALYSIS

{¶4} In his sole assignment of error, Appellant contends that the trial court erred in overruling his petition to correct illegal sentence. As set forth above, Appellant contends that aggravated robbery and possession of drugs are allied offenses of similar import which should have been merged, and that the trial court erred in denying his petition to vacate his judgment of conviction or sentence. As such, Appellant claims that his sentence is void, can be challenged at any time, and is not barred by the principles of res judicata.

{¶5} " 'In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court's judgment is invalid, irregular, or erroneous.' " (Internal citation omitted.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶

12. Typically, "sentencing errors are not jurisdictional and do not render a judgment void." Id. at ¶ 7. However, "a sentence that is not in accordance with statutorily mandated terms is void." Id. at ¶ 8. A void sentence "is not precluded from appellate review by principles of res judicata, and may be reviewed at any ...


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